The Positions Of Power Weren't Seized, They Were Vacated
Nothing Left to Conserve (Part 3)
Here’s the uncomfortable part, and the most important one. Suppose every conservative complaint about bad-faith enforcement is wrong. Suppose every tribunal member, every commissioner, every ombudsman, every licensing official is scrupulously honest and genuinely trying to be fair. The outcomes would still come out tilted in one direction.
That’s not a concession. It’s the actual diagnosis. Bad faith isn’t the engine. It’s an optional extra. The engine is three things stacked on top of each other, and once you see them stacked, you can’t unsee it.
(If you’ve read Part 1 and Part 2 of Nothing Left To Conserve, this is the structural asymmetry I promised — the one that would survive even if conservatives developed all the discipline they’ve lacked for fifty years. If you’re starting here, you don’t need them. This stands on its own.)
Stack one: The rule is written vaguely
Every rule sits somewhere on a line from objective and bright and to vague.
A bright-line rule is mechanical. A 60 km/h speed limit. A 25 per cent tax rate. A fixed retirement age. Applying it takes no judgment about what the words mean to know what kind of person or rule you’re dealing with. The number is the number. The rule is the rule.
A vague rule needs interpreting. What counts as “hate”? As “fair”? As “in the public interest”? As “a person of good character”? The wider the space for interpretation, the more power sits with whoever’s doing the interpreting.
And here’s why the world fills up with vague rules: legislators *love* them. Vague rules are flexible. They dodge the political cost of saying exactly what you mean. Best of all, they pass with support from both sides — precisely because each side sits down imagining its own people doing the enforcing. The very ambiguity that gets a rule passed is what makes it dangerous once it’s running. You’re not voting on a rule. You’re voting on a blank cheque and trusting it’ll be cashed your way.
Stack two: the people who interpret it all come from the same place
Vague rules need humans to interpret them. And those humans aren’t drawn at random from the population. They come out of specific pipelines — law schools, journalism schools, public-administration programmes, education faculties, NGO career tracks — that have leaned one way, hard, for at least two generations.
The numbers are documented. The progressive-to-conservative ratio in American humanities and social-science faculties runs more than 90 to 10 (Langbert and Stevens, 2020; similar figures for the UK from Carl, 2017, and Australia from Lindsay, 2021). The ratios in journalism, public-sector law, and the senior civil service across the English-speaking world look much the same.
This isn’t a plot. Nobody held a meeting. It’s the slow, compounding result of one kind of person self-selecting into low-paid, credential-heavy professions over decades — combined with the motivational gap from Part 2. One side was willing to do the unglamorous institutional work. The other wasn’t. And so:
The discretionary positions were not seized. They were vacated.
That’s the sentence to take away. The interpretive offices weren’t stormed. One side just kept showing up for jobs the other side considered beneath it — for forty years — and then the side that didn’t show up started complaining about who’d filled the room.
Stack three: even the honest ones breathe the same air
Vague rules plus captured offices would *still*, in principle, leave room for individual conscience to occasionally produce a fair result. The third stack closes that door.
The world around the office — the journals the official reads, the professional guidance they follow, the conferences they attend, the colleagues they talk hard cases over with, the (biased) media they consume with its blind spots, the literature their decisions cite — has itself been captured by the same monoculture over the same generation. So even sincere, good-faith enforcement, by people who genuinely believe they reasoned their way to the right answer, comes out one-directional. The whole information environment they think inside was pre-filtered to exclude the assumptions that would have produced a different conclusion.
The cleanest example is paediatric gender medicine. A GP or paediatric endocrinologist assessing a fourteen-year-old with gender dysphoria operates inside an environment where the WPATH standards, the American Academy of Pediatrics guidelines, the Endocrine Society statement, the peer-reviewed journals, the medical-school curriculum, the continuing-education modules, the hospital’s diversity training, the media, and the activist NGOs all point the same way at once. A clinician applying the standard of care their environment defines will affirm and refer for medical transition.
They would argue that they are not all failing morally. They’re not all acting in bad faith (though Prothean Institute would argue they have a duty to be fully informed that they have neglected). They’re operating inside an information architecture engineered to produce one answer — one in which the contrary evidence (the Cass Review, the Finnish, Swedish, and Danish health-service reversals, the long-term detransition data) is filtered out before it reaches them, or tagged as fringe and extremist when it slips through. The structural failure produces harm at scale, by good people who genuinely believed they were helping. That last clause is the whole point. By good (but naive) people.
The same architecture runs everywhere a vague judgment gets made. The immigration officer applying a “good character” test. The charity commissioner applying “public benefit.” The tribunal member applying “hate.” The broadcasting ombudsman applying “impartiality.” The curriculum reviewer applying “age-appropriate.” Each works inside an environment where the standard itself was defined by one monoculture — so the application comes out one-directional whether the enforcer is sincere or not.
Bad faith isn’t necessary to produce asymmetric enforcement.
Captured discretion plus a captured information environment is enough — even when every individual enforcer believes they’re acting in good faith, which they almost always do. The failure is upstream of the person at the desk. By the time the case reaches them, the tilted outcome has already been decided by the architecture they’re standing inside.
Where enforcers do act with deliberate partisan intent — the prosecutorial pattern in Fulton County, Manhattan, various state AG offices — that’s an aggravating factor bolted on top, not the root cause. Replace every wilfully partisan prosecutor tomorrow with a sincere successor from the same pipeline, breathing the same air, and the pattern holds. That’s how you know the partisanship isn’t the engine. Remove it and the machine still runs.
The test that would have stopped all of this
There’s a 250-year-old principle that catches this at the design stage, and it’s worth stating because conservatives ignored it on the way in and are now living with the bill.
Madison’s argument in Federalist No. 51 is that you design institutions for self-interested actors, not virtuous ones. The famous use is constructive — set ambition against ambition. The diagnostic use is sharper, and it’s just one question you ask of any rule: what does this rule need its enforcer to be, in order to produce the effect it promises?
Run the standard instruments through it. You don’t have to assume anyone’s a villain. You only have to admit the enforcer will come from a pipeline, will breathe an information environment, and will feel professional pressure — and that all three have pointed one way for two generations.
Section 18C needs the Human Rights Commission and the courts to apply a politically neutral definition of “offence.” They haven’t. They were never going to.
The ABC charter needs the broadcaster’s leadership to apply a politically neutral definition of “the centre.” They haven’t. They were never going to.
Charity registration needs officials to apply politically neutral criteria for “public benefit.” They haven’t. They were never going to.
Curriculum authority needs officials to apply politically neutral criteria for “legitimate content.” They haven’t. They were never going to.
Every one of these fails the test before it’s even enforced. None produces its promised outcome under any realistic staffing. The naive version of the rule — don’t pass a law you wouldn’t want your opponents to use — is the surface. The real version is harder:
Don’t pass any rule whose protective effect depends on the worldview of the official who enforces it. The worst plausible enforcer will eventually staff that office. Either the rule produces acceptable outcomes in that person’s hands, or it’s a defection waiting to be triggered.
Apply that consistently, and most of the architecture conservatives now resent would never have been built. And here’s the part conservatives don’t want to hear: they failed to apply it because they thought they wanted the same kind of instruments for their own purposes — banning flag-burning, banning pornography, restricting religious expression they disliked, controlling academic content they objected to.
The DeSantis and Trump administrations are now testing what symmetric use of the vague machine looks like in practice. The disciplined response to that experiment is not to cheer it as overdue payback. It’s to recognise that any apparatus whose fairness depends on which side holds the office is an apparatus that shouldn’t exist — because the pendulum swings, and the conservative cheering DeSantis today is blessing the exact instrument that gets used on the next conservative cohort tomorrow.
The standard is universal, or it’s worthless.
That’s the diagnosis, complete: a motivational gap that means one side won’t fight (Part 2), sitting on top of a structural machine that tilts even honest hands (this part). Which leaves the only question that matters. Given all of that — given the offices are vacated, the air is captured, and your own side won’t operate the levers — what do you actually do?
Part 4 is the answer: three strategies that only work together, a reframe that explains why “conservatism” may be the wrong word for the job entirely, and the policy that follows. It’s also where the title finally pays off.
This is Part 3 of a four-part series adapted from the Prothean Institute brief “Nothing Left to Conserve.”
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